Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
ANGELA WARNER SIMS GREGORY F. ZOELLER
Hulse, Lacey, Hardacre, Austin, Attorney General of Indiana
Sims & Childers, P.C.
Anderson, Indiana
AARON J. SPOLARICH
Deputy Attorney General
FILED
Indianapolis, Indiana
Mar 14 2012, 9:33 am
IN THE
COURT OF APPEALS OF INDIANA CLERK
of the supreme court,
court of appeals and
tax court
NOAH THOM, )
)
Appellant-Defendant, )
)
vs. ) No. 48A05-1107-CR-348
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MADISON SUPERIOR COURT
The Honorable David A. Happe, Judge
Cause No. 48D04-1101-FD-85
March 14, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
BRADFORD, Judge
Appellant-Defendant Noah Thom was convicted, pursuant to a guilty plea, of
Class D felony Strangulation1 and Class A misdemeanor Domestic Battery,2 for which he
received an aggregate sentence of twenty-four months in the Department of Correction
(“DOC”). Upon appeal, Thom challenges the appropriateness of his placement at the
DOC. We affirm.
FACTS AND PROCEDURAL HISTORY
As of November 14, 2010, Thom and Cherce Vaughn had lived together for
approximately one and one-half years.3 That night the couple got into an argument which
continued the next day. On November 15, 2010, Thom became very angry and choked
Vaughn by placing his hands around her throat. In addition, Thom struck Vaughn at least
ten times in the head and face and threw her to the floor at least five times. Vaughn hid
in a closet to escape Thom. When he left, she contacted authorities.
Authorities who arrived to investigate discovered that Vaughn had a four- to five-
inch cut on her forehead, a swollen face, and red finger marks around her neck. Vaughn
complained of pain to her head, neck, and stomach.
On January 20, 2011, the State charged Thom with Class A misdemeanor
domestic battery (Count I) and Class D felony strangulation (Count II). On May 16,
2011, Thom entered into a plea agreement with the State in which he agreed to plead
guilty to both counts. As an additional term of the plea agreement, Thom and the State
1
Ind. Code § 35-42-2-9(b) (2010).
2
Ind. Code § 35-42-2-1.3(a) (2010).
3
These facts come from the probable cause affidavit, which both parties rely upon for their facts.
The transcript of the plea hearing was not included in the record on appeal.
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agreed that his sentences would be twelve months for Count I and twenty-four months for
Count II. The parties further agreed to leave placement to the discretion of the trial court.
At the June 13, 2011 sentencing hearing, Thom testified that he had a painful
nerve condition which affected his motor skills, including his ability to walk, and which
required that he take medication and attend doctor and physical therapy appointments.
Thom additionally testified that he wished to attend school. Thom requested that the trial
court assign him to a facility better able than DOC to address his needs. For its part, the
State recommended placement at DOC.
In ordering Thom‟s placement at DOC, the trial court observed that Thom had an
extensive criminal history, that his previous placement in probation or with community
corrections had not been successful, and that the victim in the instant case had sustained
significant injury. This appeal follows.
DISCUSSION AND DECISION
Upon appeal, Thom claims that his placement at DOC is inappropriate in light of
the nature of his offenses and his character. Article VII, Sections 4 and 6 of the Indiana
Constitution “„authorize[] independent appellate review and revision of a sentence
imposed by the trial court.‟” Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007)
(quoting Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006) (emphasis and internal
quotations omitted)). Such appellate authority is implemented through Indiana Appellate
Rule 7(B), which provides that the “Court may revise a sentence authorized by statute if,
after due consideration of the trial court‟s decision, the Court finds that the sentence is
inappropriate in light of the nature of the offense and the character of the offender.” We
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exercise deference to a trial court‟s sentencing decision, both because Rule 7(B) requires
that we give “due consideration” to that decision and because we recognize the unique
perspective a trial court has when making sentencing decisions. Stewart v. State, 866
N.E.2d 858, 866 (Ind. Ct. App. 2007). It is the defendant‟s burden to demonstrate that
his sentence is inappropriate. Childress, 848 N.E.2d at 1080.
The location where a sentence is to be served is an appropriate focus for our
review and revise authority. Biddinger v. State, 868 N.E.2d 407, 414 (Ind. 2007).
Nevertheless, it is quite difficult for a defendant to prevail on a claim that his sentence
placement is inappropriate. Fonner v. State, 876 N.E.2d 340, 343 (Ind. Ct. App. 2007).
As a practical matter, trial courts know the feasibility of alternative
placements in particular counties or communities. For example, a trial
court is aware of the availability, costs, and entrance requirements of
community corrections placements in a specific locale. Additionally, the
question under Appellate Rule 7(B) is not whether another sentence is more
appropriate; rather, the question is whether the sentence imposed is
inappropriate. A defendant challenging the placement of a sentence must
convince us that the given placement is itself inappropriate.
Id. at 343-44.
Not surprisingly, we are unpersuaded that Thom‟s placement with the DOC is
inappropriate. As the trial court observed, Thom has a criminal history which includes at
least two prior felony convictions, specifically Class D felony possession of a controlled
substance and Class D felony theft, and multiple misdemeanor convictions, including one
for domestic battery. Thom has not been successful in alternative placement programs,
having violated his various probationary terms on multiple occasions. Furthermore, the
nature of the instant offenses involved Thom committing potentially lethal acts against
4
Vaughn, leaving her with significant injuries. While Thom has clear medical and likely
substance abuse problems, the trial court was within its discretion to discount the
importance of addressing these needs through less restrictive placement. Indeed, Thom
has never shown that DOC is unable to address his needs. Placement with DOC is not
inappropriate.
The judgment of the trial court is affirmed.
KIRSCH, J., and BARNES, J., concur.
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